Sunarwati (Migration) - [2018] AATA 2844

Sunarwati (Migration) [2018] AATA 2844 (29 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Christina Sunarwati
CASE NUMBER:  1702119
DIBP REFERENCE(S):  BCC2015/3183947
MEMBER:Simone Burford
DATE:29 June 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
·r.2.03A

Statement made on 29 June 2018 at 1:16pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Spouse or de facto partner – Met online – Sponsor’s need for ongoing treatment – Sponsor’s mental health – Family business – Applicant’s supplement income – Joint account – Joint correspondence – Witness statutory declarations – Strong third party support – Duration of relationship – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359AA, 375A
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A, Schedule 2 cls 820.211, 820.221
CASES
Burton v MIMIA [2005] FCA 1355
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 17 January 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 30 October 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined under the Act.
The applicant appeared before the Tribunal on 13 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Damien Jones. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
At the hearing, the parties were given a further 14 days to make any additional written submissions or to submit any additional information to the Tribunal. Submissions and information were provided to the Tribunal within this timeframe.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the relationship between the applicant and the sponsor meets the definition of ‘de facto’ in section 5CB of the Act.
Whether the parties are in a spouse or de facto…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sunarwati (Migration) [2018] AATA 2844
Case: [2018] AATA 2844
Decision Date: 29 June 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by the applicant, Ms Sunarwati, who claimed to be the de facto partner of an Australian citizen. The Administrative Appeals Tribunal, constituted by Member Simone Burford, was required to determine whether the relationship between the applicant and the sponsor met the definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship as defined by section 5CB of the Act, which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living separately and apart permanently), and that the couple are not related by family. The Tribunal also had to consider the criteria outlined in clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994, which require the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of the application and decision.

The Tribunal reasoned that as the parties were not married, they could only satisfy the visa requirements on the basis of a de facto relationship. It considered various aspects of the relationship, including its financial, household, social, and commitment elements, as prescribed by regulation 1.09A of the Migration Regulations. The Tribunal noted that it had access to significantly more information than the original delegate, including details of the relationship prior to the application and third-party testimony. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the criteria for a Subclass 820 (Partner (Temporary)) visa, specifically clauses 820.211(2) and 820.221(1) of Schedule 2 to the Regulations, and regulation 2.03A.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the relationship between the applicant and the sponsor meets the definition of ‘de facto’ in section 5CB of the Act. Whether the parties are in a spouse or de facto relationship Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is Australian Citizen. A copy of the sponsor’s Australian passport was provided.Are the parties in a de facto relationship? As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it including material submitted by the applicant prior to and following the Tribunal hearing. Based on the material contained on the Department’s file, the Tribunal acknowledges that it had before it significantly more information regarding the current status of the parties’ relationship including, but not limited to, details of their relationship prior to the application being filed and third party oral testimony from family members which supported the parties’ account of their relationship. Relationship background The applicant has never been married. The sponsor was previously married in May 2000. He was divorced in June 2008. A copy of his divorce papers was provided. He has two children from this relationship who he testified live with their mother in Sydney or Melbourne. He does not have any contact with his children. The parties claim to have met through an Asian dating website in early 2008. At this time the applicant was living in Central Java, Indonesia and the sponsor was living in Australia. The parties indicated that they began speaking regularly to each other over Skype sometimes as many as three times a day. They decided to start dating and towards the end of 2008 decided to live together. The applicant rented a property in Indonesia with money contributed by the sponsor. The sponsor arrived in Indonesia in December 2008.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:·cl.820.211(2) of Schedule 2 to the Regulations·cl.820.221(1) of Schedule 2 to the Regulations·r.2.03ASimone BurfordMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:·cl.820.211(2) of Schedule 2 to the Regulations·cl.820.221(1) of Schedule 2 to the Regulations·r.2.03ASimone BurfordMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).